Manning v. State

• Decision Date: 21 February 1989
• Docket Number: 05-84-00819-CR,Nos. 05-84-00816-C,Nos. 05-84-00818-C,05-84-00817-CR,s. 05-84-00816-C,s. 05-84-00818-C
• Citation: 766 S.W.2d 551
• Parties: Keith Dwight MANNING, Appellant, v. The STATE of Texas, Appellee. Dallas
• Court: Texas Court of Appeals

Page 551

766 S.W.2d 551

Keith Dwight MANNING, Appellant, v. The STATE of Texas, Appellee.

Nos. 05-84-00816-CR, 05-84-00817-CR

Nos. 05-84-00818-CR, 05-84-00819-CR

Court of Appeals of Texas,

Dallas.

Feb. 21, 1989.

Rehearing Denied March 21, 1989.

C. Wayne Huff, Dallas, for appellant.

Patricia Poppoff Noble, Dallas, for appellee.

Before HOWELL, THOMAS ¹ and WHITTINGTON ², JJ.

ON REMAND FROM THE COURT OF CRIMINAL APPEALS

THOMAS, Justice.

A jury at a pretrial competency hearing found Keith Dwight Manning competent to stand trial. Manning was subsequently convicted of murder, attempted murder, and three counts of aggravated robbery, all arising from the hold-up of a convenience store. This Court affirmed the convictions, despite claimed errors at the competency hearing. Manning v. State, 704 S.W.2d 825 (Tex.App.--Dallas 1985), rev'd, 730 S.W.2d 744 (Tex.Crim.App.1987). The court of criminal appeals concluded that the trial court misplaced the burden of proof in its charge to the jury during the competency hearing. Thus, the court remanded the case to this Court with instructions to abate and return the case to the trial court for a determination of Manning's competency at the time of his trial. Manning v. State, 730 S.W.2d 744, 750 (Tex.Crim.App.1987).

We abated the proceedings and ordered the trial court to conduct a competency hearing. At that hearing, a jury determined that Manning was competent at the time his trial occurred. Manning has filed a supplemental brief, complaining of two alleged errors at that hearing: 1) the trial court allowed Manning's attorney from the first trial to testify in violation of the attorney-client privilege; 2) the trial court improperly overruled Manning's objection to testimony which indicated that the issue of competency had been resolved at a prior proceeding. Finding no error, we affirm Manning's convictions.

I. ATTORNEY AS WITNESS ON COMPETENCY

In his first point of error, Manning contends that the trial court erred in allowing his former attorney to testify concerning Manning's competency during trial because that testimony violated the attorney-client privilege. Manning's attorney, Michael Byck, testified before the jury that he had been practicing law since 1972 and was board certified in criminal law in 1979. He was appointed by Judge Kinkeade to represent Manning at his former trial. He was the counsel of record during the trial of the case from July 17, 1984 through July 24, 1984. Byck testified that Manning was in the courtroom with him during that time. He had conversations with Manning during that time, with Manning talking to him and him talking to Manning. Based upon his observations and conversations, Byck formed the opinion that Manning had a rational as well as a factual understanding of the proceedings against him. Byck also stated that Manning did "understand what was going on. He did have an ability to communicate."

Manning does not cite, and we have not found, any Texas cases that explicitly address the issue of the attorney-client privilege in competency proceedings. There are a number of cases which mention defense counsel's testimony at a competency hearing; however, in none of those cases was the attorney-client privilege at issue. See Futch v. State, 632 S.W.2d 743, 746 (Tex.Crim.App.1982); Garcia v. State, 595 S.W.2d 538, 540 (Tex.Crim.App.1980); Lang v. State, 747 S.W.2d 428, 431 (Tex.App.--Corpus Christi 1988, no pet.). Thus, we are faced with an issue of first impression. In resolving the matter, we will examine the nature of the competency hearing and the attorney-client privilege in Texas, as well as examine relevant out-of-state authority.

A. THE NATURE OF THE INQUIRY INTO COMPETENCE

It is well settled that the conviction of an accused while he is legally incompetent to stand trial violates due process. Massey v. Moore, 348 U.S. 105, 108, 75 S.Ct. 145, 147, 99 L.Ed. 135, 138 (1954); Morales v. State, 587 S.W.2d 418, 421 (Tex.Crim.App.1979). A state must provide procedures that are adequate to protect a defendant's due process right not to be tried while he is incompetent. Pate v. Robinson, 383 U.S. 375, 378, 86 S.Ct. 836, 838, 15 L.Ed.2d 815, 818 (1966); Ex parte Johnston, 587 S.W.2d 163, 165 (Tex.Cr.App.1979). The test of legal competence is whether the accused has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 789, 4 L.Ed.2d 824, 825 (1960). See also TEX.CODE CRIM.PROC.ANN. art. 46.02, § 1 (Vernon 1979); Morales, 587 S.W.2d at 421.

The constitutional implications of the competency issue rest upon principles fundamental to our adversary system of justice. Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 904, 43 L.Ed.2d 103, 113 (1975). Our judicial system assumes that truth and justice result from the clash of adversaries. The adversaries in a criminal case, however, are not lawyers but are a defendant and the State. The United States Constitution guarantees more than a right to counsel. The fundamental guarantee of the sixth amendment is the defendant's right to control and participate in his defense. See Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 2533-34, 45 L.Ed.2d 562, 572-73 (1975).

Of course, as a corollary to this rule the defendant must be able to participate in or assist counsel in the conduct of his defense. It is also necessary that the defendant have the mental ability to control the decision-making process. It is the defendant, "with the help of counsel, [who must] rationally weigh the advantages of going to trial against the advantages of pleading guilty." Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747, 757 (1970). The same rule, of course, obtains with regard to other essential issues, such as whether a defendant should waive his right to counsel. Johnson v. Zerbst, 304 U.S. 458, 462-65, 58 S.Ct. 1019, 1022-23, 82 L.Ed. 1461, 1465-66 (1938). Obviously, the defendant can neither exercise his right to participate and assist in his defense, nor make the final decisions relating to the conduct of his defense, if he is mentally incompetent to engage in these activities.

One commentator has suggested that the resolution of the competency issue is nonadversarial. Pizzi, Competency to Stand Trial in Federal Courts: Conceptual and Constitutional Problems, 45 U.CHI.L.REV. 21, 56-59 (1977). Because a defendant cannot be tried at all if he is unable to assist in his defense, the only purpose for the determination of competency to stand trial is to see whether the adversarial process can be commenced or continued. Id.; see also Bishop v. Superior Court, 150 Ariz. 404, 724 P.2d 23, 26 (1986). Thus, raising the issue of competency suspends the adversarial process.

The Texas Court of Criminal Appeals seems to recognize that the nature of the competency hearing is very different from that of the adversarial trial on the merits. In Ex parte Harris, 618 S.W.2d 369 (Tex.Crim.App.1981), for example, the court noted that extraneous offenses, which are ordinarily inadmissible during trial on guilt and innocence, are admissible during a competency hearing:

The basic purpose for the exclusion of extraneous offenses is to prevent the accused from being tried for some collateral crime or for being a criminal generally. [citation omitted] Such purpose is not applicable in a competency hearing. A petitioner's guilt or innocence is to be determined in a separate trial where extraneous offenses are generally prohibited. [citation omitted] In a competency hearing, all relevant facts concerning petitioner's mental competency should be submitted to the jury.

Harris, 618 S.W.2d at 373.

Again in Ex parte Lewis, 587 S.W.2d 697 (Tex.Crim.App.1979), the court appears to recognize the nonadversarial aspects of the issue of competency. The court held that the prosecutor was required to reveal to the defense a letter from a psychiatrist which indicated that the defendant may have been incompetent to stand trial. "[I]nformation about the incompetence of a defendant can be of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request from the defendant." Id. at 701.

Because the issue of competency goes to the fundamental issue of whether a defendant can exercise his constitutional rights, and because the resolution of the issue is essentially nonadversarial, it has been suggested that the defense counsel's role in a competency proceeding is markedly different from his role in the adversarial trial process:

If the defense attorney's primary responsibility is to protect the defendant's exercise of his constitutional rights, what adversarial position should the attorney assume when the issue being determined is the ability of the defendant to exercise his rights? If the defendant has been offered a very advantageous plea, should the attorney argue vigorously for his client's competency, even though the attorney personally believes that the defendant is incompetent? Or in such a case should the attorney follow his own assessment of his client's competency and argue that the defendant is incompetent and that any plea would be involuntary?

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Counsel has no obligation to see that the court makes what counsel personally believes to be the correct ruling with respect to the suppression of evidence or the determination of probable cause. It could be argued similarly that the correct determination of competency is the responsibility of the court, not defense counsel and therefore, if he believes that a plea is in his client's best interest, counsel should take the adversarial position that his client is competent. The problem with this argument is that defense counsel has a responsibility for the correct determination of the competency...